New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 589466 - NYC: 240516

INTRODUCTION

The Parents, through their representative, filed a Due Process Complaint (DPC) on or about October 19, 2022. In the DPC, the Parents allege that the New York City Department of Education (DOE) failed to offer the Student a free appropriate public education (FAPE) for the 2020-2021, 2021-2022, and 2022-2023 school years. (Ex. A)

The Parents alleged as follows. The Student, currently REDACTED years old, suffers from a brain injury resulting in severe impairments to both mental and physical functions, is non-verbal and non-ambulatory with highly intensive management needs, has had multiple surgeries and a G-tube inserted, and presents with seizures three to four times per day. For the school years in question, the DOE failed to mandate an appropriate class size for the Student in the least restrictive environment, as the 12:1:4 classroom recommended is too large and crowded. The Student requires a 6:1:1 class with intensive 1:1 attention from a special education teacher to make progress. The DOE failed to recommend an appropriate public school placement, as the DOE failed to make a school recommendation for the 2020-2021 or 2021-2022 school years, and the proposed school location for the 2022-2023 school year is not wheelchair accessible, cannot implement the Student’s May 27, 2022 individualized education program (IEP) including related services, presents safety risks for the Student, and the students in the proposed classroom are not appropriately grouped. The DOE failed to mandate sufficient services to prevent regression and confer meaningful benefits to the Student in that the August 2020 and August 2021 IEPs recommended exclusively pull-out related services of only 30 minutes in duration and failed to recommend parent counseling and training. Nor did the DOE recommend or provide augmentative and alternative communication (AAC) or assistive technology (AT) devices services or supports, music therapy, a 1:1 paraprofessional, a 1:1 nurse, supports and specialized training for the Student’s staff/personnel, or an adequate instructional model. The DOE failed to properly evaluate the Student, failed to recommend appropriate special education transportation and accommodations, denied the Parents meaningful participation in the individualized education program (IEP) process, and predetermined the outcome of IEP meetings. (Ex. A)

The Parents request a finding that the DOE’s denied the Student a FAPE for the 2020-2021, 2021-2022, and 2022-2023 school years, a determination that the Private School is an appropriate placement for the Student, direct payment of tuition to the Private School for the 2021-2022 and 2022-2023 school years in addition to the costs of related services, direct payment of special education transportation services, an order directing the DOE to reconvene an IEP meeting within 60 days, an order directing DOE to conduct all necessary evaluations of the Student within 30 days, and an order directing the DOE to fund an independent educational evaluation (IEE) in the form of a neuropsychological evaluation conducted by a qualified provider of the Parents’ choosing at a reasonable market rate. (Ex. A)

PROCEDURAL HISTORY

I was appointed on January 11, 2023. A status conference was held on January 13, 2023. At that time the Parent Representative moved for an extension of the compliance period, which I granted. (IHO Ex. I) A Due Process Response was received from the DOE on January 13, 2023. (IHO Ex. II). A pre-hearing conference was held on February 1, 2023. At that time the parties moved for an extension of the compliance period, which I granted. (IHO Ex. III) On February 16, 2023, the DOE requested document subpoenas, which were issued without objection by the Parents on February 17, 2023. (IHO Exs. IV & V). On February 22, 2023, both sides submitted their initial disclosures for the hearing, and thereafter the Parent submitted a proposed amended DPC. (IHO Ex. VI). On February 23, 2023, the DOE responded by email that they did not accept the proposed amended DPC, and the Parent moved for the IHO to approve the amendment. (IHO Ex. VII). By email dated February 24, 2023, I denied the Parent’s request to amend the DPC. (IHO Ex. VIII). On March 1, 2023, both parties appeared for the hearing. At that time, the parties moved for an extension of the compliance period, which I granted. (IHO Ex. IX) The DOE Representative made an opening statement, and submitted 39 exhibits into the record on consent of the Parents. Included in the DOE’s evidence were three witness affidavits from the DOE Psychologist, CPSE Administrator 1, and CPSE Administrator 2. The Parent Representative cross-examined all three witnesses, and the DOE rested its case. The Parent Representative made an opening statement and submitted 17 exhibits into the record on consent of the DOE. Included in the Parents’ evidence were two witness affidavits from the Director of Special Education for the Private School (Private School Director) and Parent 1. (See March 1, 2023 transcript) On March 15, 2023, both parties appeared for the continued hearing. At that time, the parties moved for an extension of the compliance period, which I granted. (IHO Ex. X). The DOE submitted six additional exhibits into the record on consent of the Parents. The Parents submitted one additional exhibit into the record on consent of the DOE. The DOE Representative cross-examined both the Parents’ witnesses, and the Parents rested their case. Both representatives made oral closings. (See March 15, 2023 Transcript).

FINDINGS OF FACT AND DECISION

After a full review of the record generated at hearing, I make the following findings of fact and determinations.

CPSE Administrator 1 testified as follows. She was employed as a teacher for the DOE from 2001 to 2015, at which time she became an Educational Administrator for the Committee on Preschool Special Education (CPSE), and has remained in such position since that time. (CPSE Administrator Aff. at ¶ 2). As a CPSE Administrator her duties include creating IEPs, holding IEP meetings, assisting in the transition from Early Intervention to CPSE, reviewing progress reports, consulting with teachers and other inter-disciplinarians, recommending special education schools for pre-K students and/or special education services. (Id. at ¶ 4). She began working with the Student and her family in 2020. The Student was receiving Early Intervention and was going to age out since she was turning 3 years old. CPSE Administrator 1 received the Student’s CPSE evaluations on December 24, 2019 (Exs. 1-8), and scheduled her meeting for January 15, 2020, in advance of the Student’s third birthday on February 8, 2020. The psychological, educational, S/L, OT and PT evaluations were all completed by The Children Services Provider. The Student was diagnosed with a global developmental delay and Cerebral Palsy. (CPSE Administrator 1 Aff. at ¶ 6). The Student was receiving early interventions services in 2019-2020 that included OT and PT three times a week for 30 minutes, and vision, speech and feeding therapy twice a week for 30 minutes. The Student was also receiving aqua therapy once a week for 30 minutes. (Id. at ¶ 7). With respect to the IEP created for the 2020-2021 school year, CPSE Administrator 1 met with the Parents on January 15, 2020. The Parents were very emotional describing the Student’s medical history, explaining that the Student was diagnosed at 18 months old with hypoxic ischemic encephalopathy (HIE), infantile spasms, microcephaly, and Cerebral Palsy, which had led to her developmental delays. They stated that the Student had seizures which were being handled with medication and that her vision met the criteria for being legally blind. The Parents further stated that the Student continued to be monitored by a developmental specialist, ophthalmologist, orthopedist, and neurologist. (Id. at ¶ 8). At the January 15, 2020 meeting the parent due process rights were first discussed, followed by a review of the Student’s background information, medical history, and her services and progress in Early Intervention. An agency representative from The Children Services Provider participated in the meeting, and went over all the evaluations that his agency had provided. CPSE Administrator 1 explained to the Parents what qualified a student for CPSE services, what an IEP was, the goals on the IEP to address the Student’s areas of delay, and the classification of Preschool Student with a Disability that the Student would receive. She explained the differences between Early Intervention and CPSE, and school options and class sizes. As the Student was turning 3, they held an IEP meeting for pre-K services. The CPSE Administrator recommended an 8:1:2 program based on the Student’s psychological and other results, which showed her in the deficit range, as well as her medical concerns. The 8:1:2 class ratio was explained along with less restrictive ratios. CPSE Administrator 1 also explained that schools that deal with medical cases usually have a 12:1:2 or 12:1:3 ratio. They all agreed that the Student would benefit from the more restrictive environment. (Id. at ¶ 9). At that time the Parents indicated they did not want the Student in a school until kindergarten. CPSE Administrator 1 let them know it was their decision as CPSE services were voluntary, but suggested they visit some schools in case they changed their mind before the reconvene meeting that would be held in the summer to finalize the recommendation. She provided the Parents with the names of some schools and contact information, and they ended the meeting. (Id. at ¶ 10; T p. 42 L 7 to p. 44 L 6).

Over the next couple of months CPSE Administrator 1 was in contact with Parent 2 by email, and asked Parent 2 if she wanted to reconsider placing the Student in school but was told no, they would reassess the following year. CPSE Administrator 1 explained there were schools that specialized in children with medical concerns that provided full time nurses with appropriate transportation and that the Student qualified for a 12 month program. She explained that to obtain a school nurse the Parents would be required to provide certain medical forms, at which time a nurse and/or transportation nurse would be added to the IEP. Because the Parents did not want to place the Student in a school, they never reached the point of adding a nurse on the bus or in school, or a 1:1 paraprofessional, which is usually requested by the school when a student needs more one-to-one support in the classroom. Because the Student was not in school, they never got to that point. It was explained to the Parents that if they declined a school placement and requested partial services the Student would not get everything fully recommended and they agreed. It was also explained that the CPSE could reconvene to change the recommendations in the IEP if at any time the Parents decided to place the Student in school. (CPSE Administrator 1 Aff. at ¶ 10).

At the reconvene meeting held on August 25, 2020 to finalize placement and services for the 2020-2021 school year, CPSE Administrator 1 kept the recommendation of a 12-month 8:1:2 special class in a preschool with PT, OT, S/L, vision education services and special transportation, which she believed were appropriate for the Student to receive an educational benefit that would allow her to progress. (Ex. 13) Parent 2 stated that they had not looked at any schools because they were not interested. (T p. 45 L 20-22) Parent 2 again signed the partial services form and declined the school location. (Ex. 14) Partial services were provided in the home per the Parent’s request, and CPSE Administrator 1 did not hear from Parent 2 the whole school year until it was time to schedule the annual review. (CPSE Administrator 1 Aff. at ¶ 12; T p. 45 L 23 to p. 47 L 7). An annual IEP meeting was held on August 17, 2021. For the 2021-2022 school year the Student’s recommendation was changed to a 12:1:3 special class with related services. It was explained to Parent 2 that these were the recommendations offered at schools with medical assistance, while the schools typically placed children on the Autism spectrum in their 8:1:2 classes. (T. p. 51 L 4-19) Parent 2 told CPSE Administrator 1 that she was happy with the at-home services and that the Student was making some progress. At that point the Student’s speech pathologist recommended an increase in S/L to five times per week, which was added to the IEP. (Ex. 22). Parent 2 again declined a school placement, stating she wanted to keep partial services at home and would consider school the following year for kindergarten, and again declined visiting any schools, stating she was not comfortable sending the Student to school yet and that the Student would soon be having surgery on September 2, 2021. (Ex. 23) The Student continued to receive partial services and Parent 2 again signed the partial services form. (Ex. 24; CPSE Administrator Aff. at ¶ 13). On September 28, 2021 CPSE Administrator 1 received an RDNA from the SEIT Service Provider stating that the Student was not receiving services due to surgery. (Ex. 25; T p. 52 L 6-20) Parent 2 stated that the Student had to wear a cast for a month and that she would reach out when she wanted services to resume. Parent 2 also indicated she still wanted virtual therapy sessions as she planned to put the Student in kindergarten the following year. At that point this case was transferred to CPSE Administrator 2. (CPSE Administrator 1 Aff. at ¶ 14).

CPSE Administrator 2 testified as follows. She holds master’s degrees in early childhood general/special education and educational leadership and is a certified special education teacher, early childhood education teacher, and a school building leader in the state of New York. She has been employed by the DOE as a CPSE District Administrator for the past year and a half. (CPSE Administrator 2 Aff. at ¶¶ 2-3). As a CPSE Administrator her duties include creating IEPs, holding initial and annual IEP meetings, reviewing evaluations, making appropriate educational recommendations for preschool age children and securing special education supports and services for preschool students with IEPs. (Id. at ¶ 4). She was assigned the Student’s case in October 2021 and had it until May 23, 2022, when it was closed per Parent 2’s request. (Id. at ¶ 5). Under the partial services agreement (Ex. 24) the Student was to receive five hours of SEIT services per week, five 30 minute session per week of S/L, four 30 minute session per week of OT, PT, and vision therapy during the 2021-2022 school year. Due to her surgery and COVID19, she did not receive any services between September 2021 and January 2022. (Id. at ¶ 6). CPSE Administrator 2 did not attempt to locate any schools for the Student because Parent 2 had previously rejected the programs offered by CPSE Administrator 1 and had stated she wanted to keep the Student at home receiving virtual services. (T p. 56 L 9-15). CPSE Administrator 2 reached out to Parent 2 in January 2022 because the Student was not receiving her SEIT services. Parent 2 informed CPSE Administrator 2 that she had requested that the Student’s SEIT services be placed on hold because the Student had surgery in September 2021 and would resume SEIT services at the end of January 2022. (Id. at ¶ 7; T p. 56 L 25 to p. 57 L 5). On April 29, 2022, the SEIT Service Provider emailed CPSE Administrator 2 to notify her that the Student’s SEIT services would cease, as Parent 2 was placing the Student in a Private School. (Id. at ¶ 8; Ex. 29). By email dated May 3, 2022, CPSE Administrator 2 reached out to the Private School to confirm that the Student would be attending, and received confirmation. (Ex. 32). On May 5, 2022, Parent 2 emailed CPSE Administrator 2 to close the Student’s CPSE case as she was enrolling the Student at the Private School on May 23, 2022. (Id. at ¶ 9; Ex. 31). Based on the parent’s request, the Student’s CPSE case was closed effective May 23, 2022. (Id. at ¶ 10).

The DOE Psychologist testified as follows. She has worked as a school psychologist for the DOE since 2006, and with the Committee on Special Education (CSE) since 2018. She is a NYS certified school psychologist and board certified behavior analyst (BCBA). (DOE Psychologist Aff. at ¶¶ 1-4). As a school psychologist, her duties include creating IEPs, holding IEP meetings, conducting psychoeducational evaluations, evaluating students, reviewing progress reports, completing classroom observations, conducting functional behavioral assessments (FBAs), drafting behavior intervention plans (BIPs), and consulting with teachers. (Id. at ¶ 5). The DOE Psychologist was a member of the team that created the Student’s May 27, 2022 IEP for the 2022-2023 school year. (T p. 17 L 13-15; Exs. 33, 34). The IEP team recommended that the Student attend a 12:1+(3:1) (referred to as a “12:1:4” ratio) special class in a District 75 specialized school with physical therapy (PT), occupational therapy (OT), speech language therapy (S/L), vision education services, AT services, a 1:1 health paraprofessional, and a transportation paraprofessional. She was also recommended for specialized transportation from the closest curb to school. These recommendations were appropriate for the Student to receive an educational benefit that would allow her to make progress. (DOE Psychologist Aff. at ¶ 8). A 1:1 nurse was discussed, but for the provision of nursing services on an IEP there are medical forms that are required to be submitted to the nursing office, but they had not been received at the time of the IEP meeting. (T. p. 21 L 22 to p. 22 L 3; T p. 23 L 1-7). The 12:1:4 class is appropriate for the Student for the 2022-2023 school year as she was entering kindergarten with the following diagnoses: Cerebral Palsy, Hypertonia, Microcephaly, and Cortical Visual Impairment. The Student is a non-verbal and non-ambulatory child with medical conditions which affect her learning, behavior and participation in school activities. She has extensive academic, social and communicative needs and experiences global developmental delays. She needs assistance with activities of daily living including toileting, travel, and feeding. The Student needs assistance with communication, navigating the school environment, and monitoring medical/vision needs. Her management needs include multi-modality presentation of materials, additional processing time, and medical and physical supports. The recommended small-specialized class will provide the Student with the required level of attention and support to access the curriculum. (Id. at ¶ 9). The recommended S/L is appropriate to address the Student’s expressive and receptive language needs, as well as oral-motor activities. The small class, high frequency of services and recommended AT supports will allow for achievement of the Student’s goals in this domain. (Id. at ¶ 10). The recommended PT is appropriate to improve gross motor development, with measurable goals tailored to address the Student’s physical development needs within this domain. (Id. at ¶ 11). The recommended OT is appropriate to improve awareness/participation, improve play skills, and improve self-care abilities, with annual goals reasonably calculated to be measurable and achievable in this domain. (Id. at ¶ 12). The Student’s goals correspond to her areas of need. Her global development delays warrant highly specialized educational programming and individualized instructional targets. Her academic goals address her ability to respond to simple yes/no questions, attend to math tasks, and participate in structured group activities. (Id. at ¶ 13). In the clinical opinion of the DOE Psychologist, the 12:1:4 special class in a District 75 specialized school is appropriate based on the Student’s areas of need and academic functioning, as she will have access to a special education teacher and a paraprofessional. While the Student is an alternative assessment student, she will have access to typically developing peers along with peers of similar needs. The small class, coupled with the related services contained in the IEP were appropriate and reasonably calculated to enable the Student to make educational progress during the 2022-2023 school year.

(Id. at ¶ 14). The 12:1:4 recommendation provided the least restrictive program that could provide the supports the Student needed to be successful and make progress. (T p. 36 L 24 – p.

37 L 3).

The Private School Director testified as follows. She holds a master’s degree in the science of teaching, and is licensed in NYS for students with disabilities grades 1-6 and childhood education. She worked as a teacher and IEP coordinator at another private school focused on educating students with brain injuries and disorders from April 2015 to August 2017. She also worked in nonpublic schools as an educational coordinator from December 2016 to June 2018. She has been the Director of Special Education at the Private School since June 2018, and is responsible development and implementation of IEPs, training teachers, and intake of new students. (Private School Director Aff. at ¶¶ 1-4). The Private School was created for students with acquired brain injuries or brain-based disabilities. It has a 12-month extended school year calendar and extended school day from 8:30 a.m. to 5 p.m., during which all services are offered. The Private School is an interdisciplinary program with many non-verbal and non-ambulatory students. Every student at the Private School requires a 1:1 paraprofessional, and many students require a 1:1 nurse. (Id. at ¶ 5). The Private School has five 6:1:1 classes and one 8:1:1 class and accommodates students ages 5-21. Most students have a disability classification of Traumatic Brain Injury (TBI) and have either intensive or highly intensive management needs. (Id. at ¶ 6). The Private School offers OT, PT, S/L, vision education, AT services, parent counseling and training, and services for the deaf and hard of hearing. All therapy services are provided to students as needed, usually in 60 minute intervals. Services are provided using a push-in and pull-out model, to address each student’s therapeutic goals in multiple locations. This is critical for student with brain injuries because they have a severe deficit in their ability to generalize skills. Students at the Private School generally require 60 minute sessions because of transferring and repositioning needs, additional transition time and rest, and repetition needs to foster neuroplasticity. (Id. at ¶ 8).

The Student has attended the Private School since May 2022. Her diagnoses include spastic quadriplegic cerebral palsy, Lennox Gastaut Syndrome (LGS), microcephaly, and cortical visual impairment (CVI). She is nonverbal and non-ambulatory and dependent on adult support for all activities of daily living. (Private School Director Aff. at ¶ 9). The Student’s disability classification on her 2021-2022 and 2022-2023 Private School IEPs is TBI, which warrants the use of a direct instruction model and informs the clinical approach taken for related services. (Id. at ¶ 10). The Student attends a 6:1:1 class and receives related services of OT, PT, and S/L each for 60 minutes five times a week. (Id. at ¶ 11). She also receives AT services and training for 60 minutes twice a week, which is necessary for her to properly use and make progress with her AT device. (Id. at ¶ 12). She also receives music therapy 1:1 for 60 minutes twice a week and in a group for 60 minutes once a week. (Id. at ¶ 13). The Student has a 1:1 private nurse and a 1:1 paraprofessional all day every day to support her needs. (Id. at ¶ 14). The paraprofessional is necessary for the Student to access the educational environment, and the nurse is necessary for monitoring seizure activity and G-tube feedings during the school day. (T p. 89 L 22 to p. 91 L 9). A medical doctor must sign off on the recommendation for a 1:1 nurse. (T p. 97 L 23 to p. 98 L 16). She has special transportation which includes a 1:1 travel paraprofessional, limited travel time of no more than 90 minutes, air conditioning, a lift bus, and a wheelchair. (Private School Director Aff. at ¶ 14). The Student’s parent receives parent counseling and training once a month for 60 minutes. (Id. at ¶ 15). The Student has made great progress in skills across all academic and related service domains in her educational program at the Private School, and the Private School Director anticipates her to continue to build on such progress as long as she is provided with continuity in her educational program. (Id. at ¶ 16). The Private School Director participated in the May 27, 2022 IEP meeting. She agreed with the CSE that the Student should receive her related services in 60 minute sessions but disagreed with the recommendation of a 12:1:4 class ratio and with the DOE’s failure to add music therapy to the Student’s IEP. She does not believe the DOE’s recommended school placement in a District 75 public school will be able to meet the Student’s educational and health and safety needs. (Id. at ¶ 16).

Parent^[1] testified as follows. The Student is REDACTED years old with an acquired brain injury. She is nonverbal and non-ambulatory and requires adult assistance with all daily living activities. The Student’s diagnoses include LGS, spastic quadriplegic cerebral palsy, and CVI. She has had many surgeries and receives nutrition via a G-tube. (Parent 1 Aff. at ¶¶ 2-3). Parent

By ten-day notice (TDN) dated March 18, 2022, the Parents through their attorneys informed the CSE of their “intent to remove the Student from the DOE’s schools because of the DOE’s failure to offer or provide the Student with a FAPE for the 2021-2022 extended school year.” (Ex. F). On March 29, 2022, Parent 2 signed an enrollment contract with the Private School for the 2021-2022 school year starting on April 11, 2022 and ending on June 24, 2022 for full tuition of $50,424.07. (Ex. P). On June 11, 2022, Parent 2 signed an enrollment contract with the Private School for the 2022-2023 school year starting on July 6, 2022 and ending on June 23, 2023, for full tuition of $286,720.00 (Ex. K). By TDN dated June 17, 2022, the Parents through their attorneys informed the CSE of their “intent to remove [the Student] from the DOE’s recommended school placement because of the DOE’s failure to offer or provide the Student with a FAPE for the 2022-2023 extended school year.” (Ex. N).

The IDEA provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 (d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15- 827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017). A school district must be able to “offer a cogent and responsive explanation for their decisions” in creating that IEP, and it is “through the IEP that [t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of a particular child.” Id.

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. See NYS Educ. Law § 4404(1)(c).

As to Prong I of the Burlington/Carter standard, I find that the DOE established that it offered the Student a FAPE for the school years in question. For the 2020-2021 and 2021-2022 school years, I find that the CPSE complied with the procedural requirements of the IDEA and developed IEPs that were reasonably calculated to enable the then preschool Student to make progress in light of her circumstances. The August 25, 2020 IEP developed for the 2020-2021 school year was based on sufficient evaluative material to support the present levels of performance (Exs. 1-8), contained sufficient measurable annual goals, and provided for a 12-month extended school year in a full day special class with an 8:1:2 ratio and related services of 1:1 S/L, OT, PT, and vision education services for 30 minute sessions four times per week, with special transportation in an air conditioned lift bus. (Ex. 13). I credit the testimony of CPSE Administrator 1 that the 8:1:2 program with related services was appropriate for the Student to receive an educational benefit that would allow her to progress in light of her global deficits in academic skills as well as her medical needs. (CPSE Administrator 1 Aff. at ¶ 12). Given the Student’s present levels of performance, individual needs, management needs, and annual goals in the preschool setting, I do not find that AT services were required in the pre-K IEPs in order to provide the Student with a FAPE. Nor do I find any support in the record for the Parents’ assertion that only related service sessions of 60 minutes in duration would have allowed the preschool Student to make progress during the 2020-2021 or 2021-2022 school years. I further credit CPSE Administrator 1 that with respect to the 2020-2021 school year, she provided the Parents with the names of schools and contact information that could implement the IEP but that the Parents indicated they did not want the Student in a school until kindergarten (Id. at ¶ 10; T p. 42 L 7 to p. 44 L 6), and that Parent 2 stated that they had not looked at any schools because they were not interested. (T p. 45 L 20-22). I further credit CPSE Administrator 1 that because the Parents expressly informed the CPSE that they did not want to place the Student in a school until kindergarten, the CPSE never reached the point of amending the IEP to add either nursing services, which required a doctor’s medical recommendation, or a 1:1 paraprofessional, which is usually requested by the school when a student needs more one-to-one support in the classroom. (CPSE Administrator 1 Aff. at ¶ 10).

Likewise, I find that August 17, 2021 IEP (Ex. 22) developed for the 2021-2022 school year which provided for a 12-month extended school year in a full day special class with a 12:1:3 ratio and related services of 1:1 S/L for 30 minutes five times per week and 1:1 OT, PT, and vision education services for 30 minute four times per week with special transportation was appropriate for the Student to receive an educational benefit that would allow her to progress. I credit CPSE Administrator 1’s testimony that the Student’s recommendation was changed to a 12:1:3 special class because these were the recommendations offered at schools with medical assistance. (T. p. 51 L 4-19) and that Parent 2 again declined a school placement because she wanted to keep the Student home with partial services and would consider school the following year for kindergarten. I also credit that Parent 2 again declined to visit any schools that could implement the August 17, 2021 IEP, stating she was not comfortable sending the Student to school yet and that the Student would soon be having surgery on September 2, 2021. (CPSE Administrator 1 Aff. at ¶ 13). I also credit that when CPSE Administrator 2 took over the case, she did not attempt to locate any schools for the Student for the 2021-2022 school year because Parent 2 had previously rejected the programs offered by CPSE Administrator 1, and had stated she wanted to keep the Student at home receiving virtual services. (T p. 56 L 9-15). Because CPSE services are voluntary and the Parents expressly informed the CPSE that they did not want to place the Student in a school setting for either the 2020-2021 or 2021-2022 school years, I do not find that the failure of the DOE to assign a specific school placement for those years deprived the Student of a FAPE.

With respect to the 2022-2023 school year, I find that the CSE complied with the procedural requirements of the IDEA and developed an IEP based on sufficient evaluative materials (Exs. 26, 27 & 28) for kindergarten that was reasonably calculated to enable the Student to make progress in light of her circumstances. I credit the testimony of the DOE Psychologist that the May 27, 2022 IEP (Ex. 33) developed for the 2022-2023 school year which provided for a 12-month extended school year in a 12:1+(3:1) special class in a District 75 specialized school with related services of 1:1 S/L, OT, PT and vision education services for 60 minutes five per week, AT services for 60 minutes twice per week, parent counseling and training for 60 minutes once a month, a full time 1:1 health paraprofessional, and specialized transportation in a lift bus with a 1:1 transportation paraprofessional was appropriate for the Student to receive an educational benefit that would allow her to make progress. (DOE Psychologist Aff. at ¶¶ 8-9). I also credit that a 1:1 nurse was discussed at the May 27, 2022 IEP meeting, but that required medical forms to authorize a 1:1 nurse had not been received from the Parents at the time of the IEP meeting.

(T. p. 21 L 22 to p. 22 L 3; T p. 23 L 1-7). I find that the 12:1+(3:1) class ratio is appropriate as the Student meets the definition under 8 NYCRR § 200.6(h)(4)(iii) of a student with severe multiple disabilities whose programs consist primarily of habilitation and treatment, which provides for a maximum class size of 12 students. I further find that the evidence in the record fails to support the Parents’ argument that only a 6:1:1 class could provide an educational environment that would allow the Student to make progress. I further find that the Student’s skill needs were identified and addressed by the May 27, 2022 IEP related services, annual goals, and management needs, and that the CSE did not recommend music therapy specifically did not result in a denial of FAPE. (T. p. 30 L 3-17). See SRO Appeal No. 22-136 (December 1, 2022) at p. 19.

With respect to the appropriateness of the Public School placement, the Second Circuit has held that “[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement.” R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 195 (2d Cir. 2012). If a student never attends the public school under the proposed IEP, as in the present case, there can be no denial of FAPE due to the Parents’ suspicion that the DOE will be unable to implement the IEP. See Id.; see also E.H. v. N.Y.C. Dep’t of Educ., 611 Fed. App’x 728, 731 (2d Cir. 2015). Here I find that the Parent was timely informed of the school location placement (Ex. 36), and that the Parents’ claims in the Due Process Complaint (Ex. A) that the Public School is not wheelchair accessible or otherwise accessible, that the maximum length of related services sessions are 30 minutes, that there are no dedicated areas for OT, PT or S/L with air conditioning, that the Student would not be placed with students of similar needs and abilities, that the school location presents safety risks to the Student, and the other alleged infirmities with the Public School location are speculative and not supported by any evidence in the record. I do not credit that Parent 1 attempted to contact and visit the DOE’s recommended Public School placement as he acknowledged on cross-examination that he never attempted to contact the Public School, visit the Public School’s website, or visit the Public School. (T p. 85 L 7-16).

Having found that the DOE has met is burden that it offered the Student a FAPE for the school years in question, it is not necessary for me to reach Prong II of the Burlington/Carter standard as to whether the Parents demonstrated that their private placement was appropriate and "reasonably calculated to enable the child to receive educational benefits," Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006), or Prong III, which states that even if a parent establishes a right to reimbursement or direct tuition payment under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant." Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009); see also E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014). However, in order to provide the parties with a complete set of findings on the Parents’ claims in the DPC, I find that had the Parents prevailed on their claim that the DOE failed to provide the Student with a FAPE, I would have found that the Parents met their burden under Prong II that the Private School is an appropriate placement for the Student. A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 CFR § 300.39(a)(1); 8 NYCRR § 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014). I find the testimony of the Private School Director (Ex. Q) sufficient to establish that the Private School offered an educational program which met the Student’s needs under Prong II of the Burlington/Carter standard. However, I note that here the Parents sought to have unpaid tuition sent directly to the Private School. While direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA, see e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011), I find that the Parents failed to establish that they lacked the financial resources to pay such tuition. The only evidence in support of the claim for direct tuition payment is Parent 1’s testimony that “[o]ur family is unable to pay up front the cost of [the Student’s] placement and wait for reimbursement.” (Parent 1 Aff. at ¶ 13). I do not credit such statement, which lacks any detail and is unsupported by any documentary evidence such as financial statements or a tax return. Therefore had I found the Parents were entitled to DOE funding of tuition at the Private School, I would have only awarded reimbursement, not direct payment.

With respect to Prong III of the Burlington/Carter standard, I find that with respect to the 2022-2023 school year, the credible evidence establishes that the Parents did not engage in a good faith consideration of the DOE’s public school program and placement prior to enrolling the Student at the Private School, and therefore the equities would not have supported the Parents’ claim for full tuition reimbursement. The “turning 5” IEP meeting was held on May 27, 2022 (Ex. 33). While Parent 2 signed the Private School enrollment contract for the 2022-2023 school year on June 11, 2022 (Ex. K), and the Parents formally notified the DOE through their attorneys of their rejection of the recommended program and placement “as outlined in the IEP dated May 27, 2022” and their intention to enroll the Student at the Private School in a TDN dated June 17, 2022 (Ex. N), a review of the DOE Social History update dated March 15, 2022 indicates “[Parent 2] has advised that her plan is for [the Student] to attend the [Private School] in Manhattan for Kindergarten, where she believes that [the Student] will be able to receive all the services she requires.” (Ex. E). I find that this predetermination by the Parents to enroll the Student at the Private School more than two months before the May 27, 2022 IEP meeting, coupled with the failure of the Parents to contact or visit the Public School placement identified by the DOE (T p. 85 L 7-16), would have warranted a 25% reduction had tuition been awarded for the 2022-2023 school year.

Finally, the Parents also seek an independent educational evaluation (IEE) in the form of an independent neuropsychological evaluation conducted by a qualified provider of the Parents’ choosing at a reasonable market rate. (Ex A-12; T p. 124 L15-24). The IDEA provides parents with a number of procedural safeguards. Among them is the "right . . . to obtain an independent educational evaluation of the child," which in turn means "an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question." See 34 CFR § 300.502(a)(1), (3)(i); see 8 NYCRR § 200.1(z). Parents have the right to have an IEE conducted at public expense if the parent expresses disagreement with an evaluation conducted by the district and requests that an IEE be conducted at public expense. 34 CFR § 300.502(b); 8 NYCRR § 200.5(g)(1); see K.B. v. Pearl River Union Free Sch. Dist., 2012 WL 234392, at *5 (S.D.N.Y. Jan. 13, 2012). Here, while the record does not establish that the Parents requested an IEE from the DOE prior to the request contained in the DPC, the DOE did not raise any specific objections to an IEE at the hearing. See generally SRO Appeal No. 22-105 (October 3, 2022) at p. 40-41. While I find that the DOE had sufficient evaluative material in developing the IEP for the 2022-2023 school year, I also find that the Parents’ expressed disagreement in the DPC with the DOE Psychological update dated March 4, 2022 (Ex. 26) is sufficient to warrant the requested IEE. The Parents are therefore granted a neuropsychological IEE by a qualified provider at a reasonable market rate.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

1. The Parent’s request for an Order directing the DOE to fund the Student’s placement at the Private School is DENIED; and

2. The DOE shall provide for and fund at the DOE’s expense an independent neuropsychological evaluation of the Student, which shall be conducted by an independent and duly qualified evaluator selected by the Parents, who shall be paid at a reasonable market rate consistent with the rates that have been paid by the Implementation Unit of the DOE’s Impartial Hearing Office for comparable independent neuropsychological evaluations within the six (6) month period prior to the date of this Findings of Fact and Decision; payment shall be made directly to the evaluator within thirty (30) days of the DOE’s receipt of an invoice for such services.

SO ORDERED

DATED: April 27, 2023

__Philip Sturges____________

Philip P. Sturges

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

Footnotes

[1] stated that the DOE recommended preschool placement for the Student for the 2020-2021 and 2021-2022 school years but never found one and instead provided SEIT services remotely (Id. at ¶ 4), but acknowledged on cross-examination that he participated in the CPSE IEP meetings for the Student in January 2020 and August 2020, and that Parent 2 wanted to keep the Student home to receive services. (T p. 79 L 5-13). He also acknowledged that for the 2021-2022 school year the Student had surgery that kept her hospitalized from September 2021 to January 2022 (T p. 79 L 14-19), and that at the August 17, 2021 IEP meeting it was the position of both he and Parent 2 that they did not want to send the Student to school for the 2021-2022 school year, and that Parent 2 closed the Student’s case with CPSE in May 2022. (T p. 80 L 3-18). The Student began attending the Private School in May 2022. (Parent Aff. at ¶ 6). Parent 1 participated in the Student’s May 27, 2022 IEP meeting, along with the Student’s teacher and therapists from the Private School. (Id. at ¶ 7). The DOE adopted many aspects of the Private School program, including related services recommendations. (Id. at ¶ 9). Parent 1 disagreed with the recommendation of a 12:1:4 class and the failure to recommend music therapy. (Id. at ¶ 10). Parent 1 stated that he attempted to contact and visit the DOE’s recommended Public School placement and was unable to obtain any information about the placement (Id. at ¶ 11), but acknowledged on cross-examination that he never attempted to contact the Public School, visit the Public School’s website, or visit the Public School. (T p. 85 L 7-16). Parent 1 is happy with the Student’s Private School program and the progress she has made. (Id. at ¶ 12). Parent 1’s family is unable to pay the cost of the Student’s tuition at the Private School up front and wait for reimbursement. (Id. at ¶ 13).